Officials Cancel Halloween Celebrations in Massachusetts Elementary School amid protests from some parents. School officials sent out a notice Friday that Halloween activities were being canceled because some parents found them offensive to religious beliefs.

Mayor Jay at Pro Ecclesia is spreading a meme, the rules of which are:

1.Go into your archives.2. Find your 23rd post.3. Post the fifth sentence (or closest to it).4. Post the text of the sentence in your blog along with these instructions.5. Tag five other people to do the same thing.

A judge in Fairfax general district court is not allowing the presumption of guilt from the DUI statute. When I commented upon this I was reacting what I had seen published and RUMINT. I said the judge is right in ruling this unconstitutional but wrong in dismissing cases solely because of it. Well, it appears that he's not dismissing cases out of hand. According to this WaPo article, he's just making the prosecutors prove their case without the presumption of guilt. Of course that's a terrible thing if you're MADD or don't believe in the constitution.

The vast majority of my practice is in State courts. Most of the time the officers and troopers who come to court to testify know they are going to see (and be seen by) the same judges, prosecutors, and defense attorneys over and over and over again. As such, it is usually in their best interest not to deviate too far from the truth too often. It just makes sense and all but a small number seem to get it. Nevertheless, some few don't and when an officer gets a reputation for not being truthful he quickly becomes less effective in court.

There are signs. Other officers will not corroborate first officer's version of the events. Officer2 won't say the Officer1 is being untruthful. However, Officer2 "didn't hear the confession because he was out of earshot", "was at the other end of the car with the another suspect during Officer's search of the suspect", or was "calling dispatch when Officer1 got permission to search the car." Prosecutors start trying to call other officers who were at the scene rather than Officer1 and sometimes just stop asking him questions when he's in the middle of his testimony (usually after an amazingly juicy bit of testimony). And you can really tell when a judge catches on. I've seen judges who never doubted an officer before suddenly start asking if there was a recording of the statements against interest and finding people not guilty in swearing matches with a particular officer (around here nobody wins a swearing match with an officer). I've seen judges focus in on incredibly minor errors in the prosecution's case and dismiss (rather than taking judicial notice or reopening for correction). I've seen judges dismiss on minor technicalities for which I'd be laughed at if I argued for dismissal based upon them.

However, much as Mike points to in federal court, I've never actually seen a judge bluntly tell an officer that he is lying. But that doesn't mean that anyone in the courtroom, including the officer, doesn't understand what just happened.

Then WP moves on to the test which Bryan first talked about in a comment to my post and I posited was probably the better test - the use of commas as markers for descriptive phrases (not present in restrictive phrases). He agrees that this is a better test than the judge's offered that/which test. He quoted Strunk and White (and I may have to go out and buy the book because the example is dead on for my purpose), however, since I've yet to travel to my local brick and mortar, I'll quote from my 1896 Higher Lessons in English:

The adjective clause, when not restrictive, is set off by a comma.

In plain language I think the difference is this:

The puppy, which is a beagle, is cute.

The puppy which is a beagle is cute.

In the first sentence you are describing the only puppy in the room to someone. In the second sentence you are at a pet store staring through a window at 20 puppies and are describing the specific puppy you are talking about. The first doesn't modify the meaning of the sentence; whether you include ", which is a beagle," or not you are talking about the same dog. The second does modify the meaning; "which is a beagle" defines which - of 20 puppies - you are talking about.

With that, I'm off to my local brick & mortar to purchase an English text published more recently than 1894.

The drinking game was called "Stoplight Challenge" where those participating consume three drinks: one red, one yellow and one green. If the patron can remain coherent for thirty minutes afterward, they were refunded the $15 cost of the drinks - and awarded a free T-shirt.

27 October 2005

I read this eagerly because I am trying to put together a petition for the Virginia court of appeals wherein I point out (as politely as possible) that a former decision of the court makes no sense under the plain reading of the statute because of a restrictive dependent conjunctive clause. The judge is spot on in his definition of a restrictive clause:

A restrictive clause identifies a subset of the object described and directs the meaning of the sentence to that subset.

However, he then goes forward with the idea that "that" introduces restrictive clauses but "which" should not. In this I think he is wrong.

There are three words which hold the grammatical position which the judge describes. "Who" is for people. "Which" is for things and creatures. "That" is for people, animals, and things. As far back as 1896 (and probably as far back as the 1877 first printing) Higher Lessons in English and Word Building states:

That is almost always restrictive. However valuable it may seem to confine who and which to unrestrictive clauses, they are not confined to them in actual practice.

The wide use of who and which in restrictive clauses is not accounted for by saying that they occur after this, these, those, and that, and hence are used to avoid disagreeable repetitive sounds. This may frequently be the reason for employing who and which in restrictive clauses; but usages authorizes us to confirm (1) that who and which stand in such clauses oftener without, than with, this, these, those, or that preceding them, and (2) that they so stand oftener than that itself does. Especially may this be said of which.

Pages 176-178

For a more modern confirmation, here is the pertinent definition of "which" from Webster Online:

2which3 -- used as a function word to introduce a relative clause; used in any grammatical relation except that of a possessive; used especially in reference to animals, inanimate objects, groups, or ideasusage see THAT4

The pertinent section of "that" referred to is the one describing "that" as introducing restrictive clauses:

4that1 -- used as a function word to introduce a restrictive relative clause and to serve as a substitute within that clause for the substantive modified by the clause

usage That, which: Although some handbooks say otherwise, that and which are both regularly used to introduce restrictive clauses in edited prose. Which is also used to introduce nonrestrictive clauses. That was formerly used to introduce nonrestrictive clauses; such use is virtually nonexistent in present-day edited prose, though it may occasionally be found in poetry.

Which can be restrictive or not. If the judge were to state that the usage of "which" to introduce a restrictive clause is an unfortunate choice because it might lead to ambiguity he would be correct. However, using "which" and "that" to determine whether a clause is restrictive is an incorrect usage of the words and has been for at least 100 years.

26 October 2005

Holy cow! That's hilarious. It almost makes me want to move to Austin and bill 2,500 hours a year. Almost.

Anyway, I can't compete with that. I'm just one guy putting things together himself. Heck, I don't know if that many people have even stepped into my office - much less that many at one time. And I'm surely not going to license the music to Rocky. Still, the gauntlet has been thrown . . .

BTW - Perhaps even more hilarious than the video is the reaction here. Some people just have no sense of humor at all. Here's a hint: if the first thing you do when you view the video is start counting who's in what group - you've had an anti-discrimination practice for too long

It's nice and typed, unlike a State habeas, and uses a lot of language which reads like I would have imagined lawyers wrote when I was in the 7th grade: "Therefore the heretofore said fact thusly set forth previously . . ." And apparently I did a lot of things ironically. i.e. "Said counsel ironically chose to be imcompetent" (repeated in multiple variations).

I don't think I should discuss the meat of the accusations but I'll leave you part of an actual quote:

"In the instant case subjudice, Petitioner, while raising various substantive claims of the underlying judgment being imposed without judicial jurisdiction and otherwise subject to collateral attack, also configurates the claims herein upon the ineffective assistance of counsel forum . . ."

For those of you who are wondering, configurate is actually a verb. It means "to give or assign a form to." Subjudice means "before a judge or court." I'd seen subjudice before (although probably not since law school), but until I looked it up I didn't really believe configurate was a word.

Petitioner obviously had a jail-house lawyer do this for him. How do I know this? Because Petitioner (previously Client) is actually quite bright and probably would have written a better document if he'd done it himself.

Scalia disappoints us all on occasion. Whren is an abomination for defense attorneys who see the constitution violated day after day after day under its auspices. On the other hand, prosecutors scratch their heads over the Kyllo decision and its curtailing of the emanations argument. In general, you can count on Scalia calling them as he sees them and not engaging in the torturing of statutes that we usually see so that the appellate courts can keep from "construing the statute strictly against the Commonwealth."1

1 The Virginia version of the Rule of Lenity. Despite being among the oldest canons of statutory construction, it is perhaps the most debased canon in Virginia law. It is often just stated and ignored in favor of some "legislative intent" argument which is usually, ummm, creative and almost never states authority for the legislative intent which the court is assuming to exist.

23 October 2005

Client comes into court facing a charge of misdemeanor trespass and misdemeanor failure to appear in court. She walks out of lockup and the judge reads the charge and Client pleads not guilty on each.

The evidence goes forward and the prosecutor calls the owner of the house. Owner testifies that Client lived there with his son. Son is currently serving time. Owner states that several times in the past year he told Client that she could no longer live there. However, he admits that she has lived at the house, on-and-off, at times since he told her to leave. He says that about three months ago Client got out of jail and came back to the house drunk; she says "I'm home!" and heads back to "my son's and her room." Owner says he told her to get out that night. Four days later Owner went to the magistrate and swore out a warrant for trespassing. He's the only person who testifies (on either side).

First we take care of the failure to appear charge. I point out to the judge that the underlying trespass warrant does not have the sections checked which indicate that the misdemeanor warrant was served on Client as part of her arrest or that she was served the warrant and told to come back for a pretrial hearing (the FTA is for missing the pretrial hearing). I also point out that the section which she is supposed to sign if the warrant is served and she is released is blank: no signature or indication of refusal to sign. I tell the judge that there is no evidence that client was ever even served the warrant and therefore cannot be held responsible for failing to appear. The judge hems and haws about this for a little bit; it's pretty clear he doesn't want to dismiss. I explain it to him a couple times and he gets it - he's just not happy about it. Finally, the prosecutor asks to see the underlying warrant. She checks to make sure it is as I've described it and then moves to dismiss. At this point the judge is satisfied and dismisses the failure to appear.

Then we move on to the argument about the trespassing. My argument basically boils down to one thing: if Owner had gotten the warrant on the first day Client would be guilty of trespass. However, Owner waited four days to swear out the warrant and swore it out for the fourth day. In the meantime he has acquiesced to her presence and waived his right to pursue a criminal charge of trespass; he should have pursued a civil eviction. It's a weak argument and the judge and I engage in this conversation:

Judge: "Mr. Lammers, he told her she couldn't be there."

Me: "Yes sir. On the first day. However, when he left her on the property and did not pursue a remedy he waived that claim."

Judge: "Mr. Lammers, as soon as she came on the first night he told her to leave. He never told her she could stay - she imposed herself."

Me: "On the first day that's correct. However, he let her stay there for four days. At some point allowing her to stay becomes approval for her to stay. When he did not act on the first day he approved her remaining at the residence in the room he himself called 'his son's and her room.'"

Judge (grinning): "Mr. Lammers, I just don't see how your argument makes sense. He told her she couldn't stay. Trespass is a continuing offense."

This argument circle repeats for several minutes. It's crystal clear how he's going to rule. Finally, I answer the question one last time and finish saying something like this: " . . . and, sir, if that's not persuasive I fear we are not going to have a meeting of the minds." He grins at me again and finds my client guilty. He then gives Client a sentence which is basically time served.

It was the end of the docket and he could see I was grasping at anything to argue my client's contention that she was not trespassing. I think the first round of argument he was listening; after that I think he was having a little fun with me - seeing how many times he could turn me on the spit before I would say, "Enough!" At the time I was a little exasperated but even I could see the humor of it. I went back into the lockup with my client to explain and when I came out the court personnel were smiling because they knew what had just happened.

As time goes on, and the facts develop, it seems like the case against Delay gets weaker. Of course the judge needs to recuse, and of course venue needs to change. But of course this is Ronie Earle's version of what is fair.

The trick, you see, is that they don't give you your magic wand in law school - you have to buy it. And they don't advertise to those whom prophecy reveals will practice criminal defense. I got lucky and just happened to hear the two guys a carrel over talking about the sale (they were prophecied to become obscenely wealthy working their way through BigLaw). So I snuck over and used my roomate's name to get my very own wand. It's great, I pull it out and "presto-change-o" prosecutors and judges become reaonable people.

Client was arrested for obstruction of justice and battery of a police officer. I've spent a fair amount of time trying to square away the fact that the police charged him under somebody else's name and met with Client a few times. He doesn't seem much different than a typical, fairly friendly, frequent flyer.

After I spend a week getting the identity squared away, we have a bond hearing. Client's bond was set at $10,000 originally because he wouldn't admit he was the guy whom they claimed he was and that guy had a sexual offense history. I show the judge a picture of the other guy from the sex offender website and point out that he's not my client. That gets Client's bond dropped to $5,000 and his real name amended to the warant as an AKA. I point out it's not an AKA - it's his real name - but the prosecutor and judge both insist on leaving the name he was charged under and putting his real name as an AKA. Client is clearly disappointed but doesn't do anything disruptive.

Then comes the date of the hearing in the general district court. As I walk into the building every deputy I pass tells me that Sergeant is looking for me. When I get to the courtroom itself a deputy meets me at the door and calls on the radio for Sergeant. Sergeant gets there and tells me that Client has been difficult. They had to fight him to get him out of the jail into the van. He head-butted another inmate in the van. They had to fight to get him from the van into lockup in the basement. He's going to be the last person called on this morning's docket because they are worried about security.

Okay . . . I go off and take care of a couple other cases and then come back and talk with the prosecutor. The prosecutor offers to reduce the felony A&B to a misdemeanor with 6 months (actually 3 to serve) and 30 days (actually 15 to serve) on the obstruction misdemeanor. Client has already banked a couple months and if he takes the deal it would be less time than he is going to serve waiting for the felony trial date. I go down to the basement to try to talk to Client but they can't bring him to the attorney meeting room because there is only one deputy and won't deal with Client with less than two. So, I tell them that I will talk to Client when they bring him upstairs; the second to last case is finishing upstairs so we're next.

I go back upstairs and go to the upstairs lockup. It takes time because they are having trouble getting him into the elevator. The deputy in upstairs lockup tells me that they have to drag him to the elevator. The elevator opens and Client is laying on the floor, mumbling. There are 4 extra deputies in the elevator. One of them asks Client if he's going to make them drag him and Client stands up. He looks disoriented and they walk him up to me with deputies on all sides.

I try to focus him: "Mr. Smith!" He looks at me for a second and then says, "Illah" and starts chanting nonsense. "This is blue, I am green, a white man with glasses, this place is yellow, I'm not yellow, green, green . . ." One of the deputies immediately puts Client's right wrist in a lock hold. Client keeps going and going and going and has a thousand mile stare going on. There is no way I can put this guy in front of a judge and claim that he is competent.

I go out to the judge and tell him that I need a mental evaluation: "I'm sorry, your Honor, if I'd realized it was needed before today I'd have asked for it sooner."

Judge: "Well, Mr. Lammers, Client seemed pretty lucid when we had that bond hearing a last week."

Client (loud enough to be heard from the soundproofed lockup area): "Blue is now, Green has been, Hair is good . . ."

Judge: "Mr. Lammers, I'm going to order evaluation for competency and sanity at time of the offense. And if you think he's so dangerous that he can't go to trial, I think I'm going to have to revoke his bond."

I see the judge look behind me and glance back. There are 15 deputies standing in the courtroom waiting in case the other 5 have to bring Client from out of lockup.

Me: "I don't know that Client is dangerous - although it appears that others may have concerns - I just cannot vouch for his competency."

The judge orders the evaluation and revokes Client's bond. I go in the lockup and two deputies are standing on either side of Client, holding him down as he sits in a chair. He's still going strong: "This place is purple and she is brown and brown with glasses . . ." I try to get his attention but fail. Sergeant gets his people ready to escort Client back down the elavator. I tell Sergeant to wait a second, I have to say the words to him even if he doesn't understand right now because he might later. So I tell Client what is going on but he just keeps staring a thousand miles out and chanting away. Then the deputies let him up and escort him to the elavator and I hear the chants fade away as the elavator doors close and the elavator goes back down to the basement.

2) Okay, I hate spam as much as the next guy, but there seems to be something wrong with using warrants to put someone out of business. I wonder why this guy was still doing anything in the States. Why didn't he find out where Pirate Bay is located and get servers in that country?

This week's episode discusses the constitutional interpretation and the presumptions under Virginia's DUI laws. I discuss why a Virginia judge is right when he says the statute is unconstitutional but wrong when he dismisses cases based upon the constitutional error.Here's the video. Go over to the left column and click Lex Radio to go listen to audio on Odeo.

A riot broke out in Toledo, Ohio Saturday, when protesters at a white supremacists' march threw rocks at police and vandalized vehicles and stores. Some in the crowd claimed to be upset that the town allowed the group to march in the first place.

And, this year I'm also obligated to watch the team which is hosting the Coach Heir-Apparent:

And, who knows, if Tubby can't deliver soon maybe a new coach will be needed right quick. BTW - Wouldn't you hate to have a job where you were acknowledged to be among the very best and still get complained about by a yahoo like me who couldn't coach his way out of a paper bag? Tubby's got a job where a whole State full of yahoos do this. A couple of years without a national championship? Off with his head!!!!

This local murder investigation has taken on a life of its own and even gone national with the key players making the rounds on talk T.V.

I must admit, however, this case does have it all: A beautiful young teenage girl missing; her 38 year old boyfriend/prime-suspect arrested on child porn charges; a body found... sounds like an episode of C.S.I., but its all too real.

AAaaarrrrggggg!!!! I put together a new lawcast reviewing a new show on the WB "Just Legal" and was putting the final touches on it by checking some stuff about Don Johnson (one of the stars) and found out it's been cancelled.

10 October 2005

Ethan Leib, of Prawfsblawg fame, has put out a work in progress in which he proposes supermajorities rather than unanimous decisions for convictions and simple majorities for acquittals.

I haven't yet read the actual article but must say my gut instinct is to oppose this sort of change.

(A) There's no problem to solve here. Both from my personal experience and discussions with other attorneys, I believe there are very few hung juries. Juries almost always come to a unanimous conclusion.

(B) The objective of the system is to put the onus on the government. Not requiring the government to prove its case to the satisfaction of 12 citizens is a step back from the burden of proof. In effect, it gives the government extra strikes from the jury pool. If the required number for conviction is 8 the opinion of the last 4 is irrelevant. The government gets the benefit of the 8 jurors it would prefer present (the convictors) and gets to ignore the remaining 4, basically discharging them from their duties because they do not agree to convict.

But wait, you say, the defense gets this same benefit! In effect it gets 5 extra strikes in cases wherein the jury votes to acquit (7 being the number needed for a majority out of 12). Yep. But there's no lessened burden of proof because the defendant has no burden of proof. And, let's be honest here, how often is the holdout minority a couple of convictors when the rest are for acquittal?

Additionally, as a matter of judicial efficiency, there's a good argument for simple majority acquittal: A simple majority for acquittal would benefit a system which requires the government to prove its case by keeping the government from retrying weak cases.

Anyway, I suggest that ya'll go download and read the article. For all I know it blows my reservations out of the water. I'll try to comment on the article as a whole when I get a chance to read it.

Indigent Journal is a new blawg out there about criminal defense. Currently, he's going nuts over an article published in The Champion (the National Association of Criminal Defense Lawyer's magazine) which besmirches those who remain in a public defender's office too long. Apparently the author reasoned that those who remain in the government's employ as PD's eventually become too close to the prosecutors and judges and, as a direct consequence of being too familiar, do not take enough cases to trial.

My Take: I am no longer a member of the NACDL. I was at one time but all I got out of it was the nicely put together glossy magazine - the same magazine which Indigent Journal is upset about. And it used to upset me the same way on the same sorts of issues. Nothing which any of us did as indigent defense attorneys was good enough. Sometimes I wondered if they'd even be satisfied if I did this:

BTW: I really like mobuzz, probably because it's humorous and the announcerettes are pretty hot. Karina Stenquist, who does the English version, is hilarious; I got hooked when I ran across her squidcast. Iria Gallardo does the Spanish broadcast; I don't speak Spanish but somehow I still got sucked in (I think it's because I'm male).

06 October 2005

8 a.m. - I roll into the courthouse for my first case of the day. It's going to be a good start to the day because I know it's a slam dunk win. The case is called and my client is brought from lock-up. He's being show caused for not paying restitution in 2001. The district court only kept him on probation until 2003. The prosecutor's office asked for a capias to arrest him for not paying the restitution in 2004, a year and nine days after the court had lost jurisdiction. He was arrested in another jurisdiction this year and the capias was served on him.

Before the case starts I make a motion to dismiss, pointing all this out to the judge. The judge disagrees, stating that Client was supposed to pay the restitution in four months, didn't pay, and therefore the court has jurisdiction. I point out that the court had limited its jurisdiction and that this time had run a year and nine days before anybody did anything about it = the court doesn't have jurisdiction. "But Mr. Lammers, he didn't pay the restitution within the four months so the court retains jurisdiction." The judge and I go round and round about this and I get no where. As a last ditch effort I try pointing out that under the judge's interpretation the court would retain jurisdiction for all time (obviously not proper). At this point the prosecutor joins the argument comparing the unpaid restitution to an unserved warrant for someone not coming to court. I point out that that makes no sense but the judge isn't having any of it. He denies my motion and finds my client guilty.

Then comes the sentence. The judge revokes my client's suspended time and resuspends all of it except 30 days. He then sets as the sole condition of the remaining suspended time that Client pay the restitution and puts Client on probation for three years. Just little perturbed, I have to bite down hard on my tongue to keep from saying "Your Honor you've just proven my point. If you actually believe that in matters of restitution the court retains infinite jurisdiction you wouldn't have set a time limit for probation based solely on payment of restitution." I ask for an appeal bond and the judge sets it in the amount of the restitution.

Then I go back into lockup and talk with my client. I am not happy and want to appeal this to the circuit court so badly I can taste it. Client has served more than the 30 days and will get out today if he accepts the judge's decision. Anyone out there want to guess whether I got to appeal the case?

8:45 - I go over to the next courtroom for my next case. It's a show cause (for failure to complete community service and failure to pay restitution) and a misdemeanor failure to appear in court. We come out and plead guilty. I explain that client believes that he had done all of his community service but that the last six hours weren't credited to him because he signed in but forgot to sign out. I point out to the judge that Client has already served over a month and that he has a job ready when he gets out so that he can start paying the restitution. I suggest that the judge give him a total of a month in jail. The judge states that he believes Client is not taking any of this seriously and revokes Client's suspended time and resuspends all but six months. "Mr. Lammers, I may look favorably upon a motion to reconsider if the restitution is paid."

9:30 - I go to the circuit court for a de novo appeal of a trespassing case; it's a citizen complaint which means warrant did not issue on the sworn statement of an officer but on the word of a citizen. In general district court my client was convicted of trespassing but the judge low-balled the punishment, taking Client's case under advisement for a year (to be dismissed if no further trouble). Client insists he is innocent and demands an appeal. The first appeal date he missed court and the judge issued a show cause. When I get up to the courtroom I find out that Client has been arrested that morning when he arrived in court; when they were unable to successfully serve the summons for the show cause the judge changed it to a capias. I give the prosecutor a chance to back out before trial but he declines.

The case gets called. Client pleads not guilty to both the trespass and the show cause for failure to appear. The prosecutor calls his only witness. She's about 50+ and slowly hobbles up to the witness stand, leaning heavily on her cane. She wheezes a little, coughs every so often, and seems to be trying to look pitiful. She tells how Client used to date her daughter but doesn't anymore and that he's now banned from her property. She tries to get off point to raise all sorts of other things but after a couple objections she stays on point (with some herding by the prosecutor). Then she says that she was awake in the early morning hours of 15 January 2005 and saw my client drive his car into her driveway. At the door, she saw my client, he saw her, and he pulled out and drove away. The prosecutor asks her what time this happened and she stated 3:44. The prosecutor tries to see if there is any play in this but she holds fast. She saw the time on the kitchen clock when she went to wake others in the house, she noted the time on a tape recording she made to turn over to the police (the officer called refused to go swear a warrant), and the clock is never wrong about the time. She also states that she was the only one to see Client.

Then I cross her. She admits that she was 150 feet from the vehicle she saw it. She admits that the headlights were on. Finally, she clarifies that the event actually occurred the night of the 15th and morning of the 16th (meaning it actually occurred on 16 January 2005 at 3:44 a.m.). At first she repeats that it happened on the 15th "because we went to the magistrate on the 16th." I ask her if she went to the magistrate when she woke up the next day and she says "Yes" and agrees that this meant the event actually occurred on the 16th.

Next comes my turn to call witnesses. I call my client's former boss. She testifies that my client was working as a pizza driver and worked a double shift on the night of the 15-16th. She has records (which I move into evidence) showing that he clocked out at 3:54 on the 16th.

The prosecutor crosses and it comes out that in order to clock in Client had a number and code to enter into the computer but that only a manager could clock him out after he finished work and turned in all his money.

With that, I close my case. The prosecutor waives his opening argument. As I stand up to close the judge asks me about the failure to appear. I start to proffer that Client had mixed up a couple court dates but the judge starts asking indepth questions so Client has to go the stand and testify that he had a date for a speeding ticket and a date for this court, he went to the wrong courthouse, and he was really upset when he found out he'd missed the last date.

Then I get to argue. I point out that client was at work and couldn't have clocked out without his manager, that there was no way he could have driven from his job in the middle of Richmond to the complaining witness' suburban house in less than 30-45 minutes (if he sped), and that he got off work after the alleged incident had occurred. The prosecutor gets up and starts hammering away at the fact that the manager of the pizza place wasn't in court to say he saw Client at work; all we had were records which could have been entered by anyone. I object to the prosecution's insistence that the defense produce the manager: "Your Honor, it's the prosecution's job to prove guilt." The prosecutor then mops the floor with me for a couple minutes, pointing out that an alibi is an affirmative defense. He starts goes on and on about how his office had no notice of this defense; I start to object (they had notice because it was the same defense relied upon in general district court) but I let it go because the argument doesn't look like it's getting any traction.

The the judge rules: "Mr. Prosecutor, I tend to agree with you." At this point my head pops up. My client has won; if Client were going to lose the judge would have started out by telling Client what a great job his defense attorney had done. "I think there is a strong suspicion, no, a strong probability that Client did what Ms. Smith says he did. However, as we all know, that's not the standard. Therefore, I find Client not guilty. I also find him not guilty of the failure to appear in court. His story is suspicious but nothing rebutted it." He then warns Client not to go to that property ever. Client's thrilled but still has to go over to the jail for processing (because the capias was served on him) before he can be released for the day.

2) Professor Groot was one of the best professors at W&L. I learned the common law definitions of several crimes because of him. Not because I was in his class, mind you, but because my roomate was and he was so terrified of Groot that he would spend hours drilling on the common law crimes until all of us could recite the elements in our sleep.

3) Imagine if you found out the girl you just bought a drink for is that client who hasn't returned your calls or come to see you. Now imagine that the charge you've been assigned to represent her for is underage drinking.

If I had to bet, I'd bet on The Hammer. The indictment is flimsy, the prosecutor's got a history, and the defendant has retained one of the finest defense lawyers in the country, Dick DeGuerrin (who, incidentally, licked the same prosecutor about 10 years ago when Kay Bailey Hutchison was the victim of a similar politically motivated indictment). Yep, bet on The Hammer here and give the points.

I'm at a show cause hearing for a client who has been reported by probation for not reporting in and not completing community service. It quickly becomes apparent that my adversary for the hearing is not the prosecutor, it's the judge. I call my client's mother and the prosecutor declines to cross her; the judge then spends 15 minutes going back and forth with her either (a) trying to discredit her testimony, or (b) trying to convince her that her daughter deserves to go to jail (not sure which exactly). He does the same thing when Client testifies.

Then comes argument. The prosecutor waives opening and I stand up and point out that much of the problem stems from the fact that Client lives at the far end of the next county over, has no phone, and cannot drive. I then point out that if we could get things transferred over to that county's probation office Client would be able to complete his responsibilities because Mom can drive him to something in the county. I also point out that Client got a good job a couple months back and has voluntarily entered drug treatment (despite the fact that she's never had a drug charge).

At this point the judge interrupts me and says, "That's all good counsel, but you need to tell me a reason I shouldn't send him to jail." Then I go off. I point out forcefully that this is a kid who is trying to get his life together and she'll lose her job if she's incarcerated and that we need to help her along the path. I ended with, " . . . and this Court would do well to help her along the path to recovery rather than just warehousing her at taxpayers' expense."

It was incredibly cathartic and satisfying and when I sat back down at the table I start kicking myself because I know it wasn't helpful for my client. The judge gave her 60 days in jail. I doubt I could have done anything to change how much time Client got (I think the judge had decided before we even started the hearing). Still, I'd like to have that minute or so back in order to try to - at the very least - make that argument a tad bit more tactfully.

Disclaimer

In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.